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Planning Court Judgments

Our latest update as to any rulings last week of the Planning Court together with any relevant appellate judgments, along with a commentary by Town Legal LLP and links. Where appropriate, we also include other relevant public law rulings from other courts.

Planning Court Weekly Update - 03 Sep 2021

Index

HHRC Ltd v Hackney Borough Council [2021] EWHC 2440 (Admin) (03 September 2021) View summary here.

Townley, R (On the Application Of) v Natural Resources Wales [2021] EWHC 2391 (Admin) (27 August 2021) View summary here.

Hedges v Secretary of State for Housing, Communities and Local Government & Anor [2021] EWHC 2392 (Admin) (27 August 2021) View summary here.


HHRC Ltd v Hackney Borough Council [2021] EWHC 2440 (Admin) (03 September 2021)

The case concerned an application for judicial review in relation to Hackney Borough Council’s decision in September 2020 to adopt an emergency transport plan entitled “Rebuilding a Green Hackney – Emergency Transport Plan: responding to the impacts of COVID-19 on the transport network” (the “ETP”).  The claim was brought on four grounds concerning (1) the duty under section 16 of the Traffic Management Act 2004; (2) breach of the public sector equality duty; (3) failure to investigate or have regard to the impact on air quality; and (4) breach of common law consultation requirements.  The challenge was unsuccessful on all four grounds.

The ETP outlined the creation of a new network of Low Traffic Neighbourhoods (LTNs) across the borough.  It was made in the context of the guidance published by the Secretary of State for Transport in response to the COVID-19 pandemic entitled “Traffic Management Act 2004: network management in response to COVID-19”. (“the COVID-19 Guidance”) which stated “The government therefore expects local authorities to make significant changes to their road layouts to give more space to cyclists and pedestrians. such changes will help embed altered behaviours and demonstrate the positive effects of active travel.” The Mayor of London had also published the “London Streetspace plan – Interim Guidance to Boroughs” which included guidance on LTNs.

Ground 1 concerned the network management duty under section 16 of the Traffic Management Act 2004 which provides that it is the duty of a local authority to manage their road network “with a view to achieving, so far as may be reasonably practicable having regard to their other obligations, policies and objectives, the following objectives: (a) securing the expeditious movement of traffic on the authority’s road network; and (b) facilitating the expeditious movement of traffic on road networks for which another authority is the traffic authority.”  The claimant submitted that discharge of the duty should be evidence-led, and in the present case the defendant had little or no evidence to support the assertions that were being made in the ETP, and no analysis of the impacts outside the LTNs which would arise as a consequence of their introduction.
There were some important elements of context: firstly that the terms of section 16 of the 2004 Act provide the authority with broad parameters within which to act consistently with the duty; secondly that “traffic” under section 16 includes pedestrians and cyclists; and thirdly the COVID-19 Guidance which had been issued pursuant to section 18 of the 2004 Act specifically for the purpose of enabling highway authorities to deliver their network management duty so it was reasonable to conclude that the measures identified in the COVID-19 Guidance, and the injunction to act urgently was regarded by the Secretary of State for Transport as being consistent with the discharge of the network management duty.
It was important to recognise the extremity of the circumstances of the COVID-19 pandemic and that the COVID-19 Guidance itself contemplated action being taken urgently to reallocate road space to walking and cycling both so as to provide space for social distancing, but also so as to accommodate and embed altered behaviours in relation to active travel. The guidance contemplated experimental schemes which would upon installation be monitored and the subject of ongoing consultation.  The ETP was consistent with the COVID-19 Guidance and the Mr Justice Dove had no difficulty in concluding that the measures contemplated by the COVID-19 Guidance did not breach the network management duty. The requirements of the duty were addressed by the approach which was taken to the COVID-19 Guidance, the consideration given to the management of the present and future needs of the various modes of travel using the road network, and the use of ETOs with the opportunities which they provided for monitoring, survey and review of the performance of the proposed measures. This ground was dismissed.

Ground 2 concerned the public sector equality duty (PSED). The claimant submitted that the defendant wholly failed to assess properly or at all the impacts of the proposals of the ETP upon people with protected characteristics.  It was held that bearing in mind the circumstances and the context of the Equality Impact Assessment undertaken by the Council in relation to the ETP, Mr Justice Dove was satisfied that due regard was paid in the preparation of the ETP to the PSED. The ETP is part of a continuum and its focus upon equality impacts was sufficient and proportionate for the stage within the process which it occupied so the ground was also dismissed.

Ground 3 concerned air quality and the Claimant argued that the defendant failed to address the impact on poor air quality of the implementation of the LTNs, and instead of focusing upon the congested main strategic roads which it was acknowledged suffered the poorest air quality, focused instead upon the areas away from those main roads which were not a problem in respect of air quality. The issue of air quality, and particularly worsening of air quality in those part of the borough already significantly affected by poor air quality, was clearly a material consideration to be considered by the defendant in formulating the ETP proposals. The question which arose is whether or not it was lawfully open to the defendant to approach the impact of the LTNs on air quality in the by imposing the LTNs and, thereafter undertaking traffic surveys and monitoring and surveying and modelling air quality impacts.  Although Section 82 of the Environment Act 1995 requires local authorities to undertake air quality reviews, the duty is broad and to be discharged by periodic review so provided little support to the claimant’s arguments. For the reasons given in relation to Ground 1 concerning the nature of the COVID-19 pandemic and the need for an urgent response to it in the light of the additional specific statutory guidance given by the Secretary of State for Transport, Mr Justice Dove was unable to accept that it was unlawful for the defendants to treat the issue of air quality in the way in which they did.

The final ground 4 concerned consultation.  The Claimant relied on the 2004 Guidance on the Network Management Duty which expected that an authority would carry out consultation when deciding on policies in relation to the network management duty.  The Claimant also contended that in accordance with the Sedley principles consultation should occur at a stage when proposals are being formed. Whilst the COVID-19 Guidance did not replace the 2004 Guidance, it provided additional advice on techniques for managing roads to deal with COVID-19 response related issues. This additional guidance, specifically contemplates the approach to consultation taken by the Council, namely that it is undertaken in respect of the ETOs alongside their operation during the experimental period for which they have been introduced. None of this gave rise to an entitlement to, or expectation of, additional consultation in relation to a policy document like the ETP: in short there was no legal duty to consult with the public in relation to the decision to adopt it, bearing in mind the particular factual context with which this case is concerned. The ground was dismissed.

Full Case

Written by Susannah Herbert, Town Legal.
Townley, R (On the Application Of) v Natural Resources Wales [2021] EWHC 2391 (Admin) (27 August 2021)

The River Wye is designated as a Special Area of Conservation (“SAC”) under the Conservation of Habitats and Species Regulations 2017 (“the Habitats Regulations”). In addition, some sites along the River Wye are designated as Sites of Special Scientific Interest (“SSSIs”) under the Wildlife and Countryside Act 1981.

Where it appears that a plan or project is likely to have a significant effect on a protected site (either alone or in combination with other plans or projects), under regulation 24(1) of the Habitats Regulations, National Resources Wales (“NRW”, as competent authority) is required to make an appropriate assessment (“AA”) of the implications for the protected site in view of its conservation objectives. Regulation 24(2) of the Habitats Regulations provides that consent may be given for the operation only after NRW has ascertained that the plan or project will not adversely affect the integrity of the site.

NRW granted consent on 5 January 2021 for Wye Valley Canoes (“WVC”, the interested party in this case) to launch up to 40 canoes, 20 kayaks and 5 paddle boards a day onto the River Wye from a boat house at Glasbury, which is several kilometres upstream from Hay. The consent was subject to conditions, one of which restricted any launches when frequent grounding was likely in the passage downstream to Hay in order to avoid damage and deterioration to the riverbed, gravel shoals and water crowfoot beds.

The claimant owns land and fishing rights downstream of Glasbury where people who hire WVC’s canoes paddle. The claimant sought to challenge by way of judicial review the lawfulness of NRW’s decision to grant the consent on the ground that NRW did not fulfil its obligations under the Habitats Regulations to be satisfied beyond all reasonable doubt that where there is a likely significant effect on the site, the proposed mitigation will be effective.

NRW undertook an AA. The conclusions of the AA were that  likely significant effects on the integrity of the site could not be ruled out because the impact pathway (from the launching of canoes) would damage or disturb the designated species features and mitigation measures were required, specifically during periods of very low flow when grounding was likely. This was the harm that concerned the claimant and the harm which the condition restricting launches when frequent grounding sought to prevent. The claimant alleged that the wording of the proposed condition was imprecise, subjective and ineffective.

At the oral renewal hearing (permission having been refused on the papers), the High Court held that NRW’s decision to address the potential harm by the imposition of a condition was “comfortably within the margin of appreciation to be afforded to NRW”. Under the Habitats Regulations, the High Court noted that NRW must be sure that the consent will not adversely affect the integrity of the site but it did not have to be sure that no part of the riverbed or gravel shoals will be disturbed or that no part of the water crowfoot beds will be damaged by granting the consent.

The High Court further found that the claimant had failed to show that NRW’s proposed mitigation condition was “so unreasonable that no competent authority proceeding lawfully could have come to such a decision”. Accordingly, the High Court  refused permission for the claimant to challenge NRW’s decision to grant the consent by way of judicial review.

Full Case

Written by Nikita Sellers, Town Legal.
Hedges v Secretary of State for Housing, Communities and Local Government & Anor [2021] EWHC 2392 (Admin) (27 August 2021)

This was an appeal by Mrs Hedges under section 289 of the Town and Country Planning Act 1990 against the Inspector’s decision to dismiss her appeal against an enforcement notice issued on 10 October 2019. The notice related to a field owned by Mrs Hedges (‘the Land’). The breach of planning control alleged in the notice was that without planning permission there was a material change of use of the Land from a field used for agricultural purposes to holiday use for the stationing of caravans and tents.

The sole ground of appeal was that the Inspector erred in requiring evidence of actual use of the Land as a campsite in order to give rise to a material change of use. The High Court dismissed the appeal.

It was common ground that there was uninterrupted unlawful use of the Land as a holiday campsite since 2010. The disputed period was between 10 October 2009 (or earlier) and the end of 2009. The Appellant argued that in considering whether a material change of use took place before 10 October 2009 (so as to continue for 10 years before the date of the enforcement notice) the inspector failed to take into account factors other than actual use, such as the presence of mobile toilet and shower facilities on the Land, signs, advertisements and bookings, which pointed to the Land being used as a campsite from July 2009, or at least by October 2009.

The Inspector accepted that the mobile toilet and shower facilities were stationed on the Land from July 2019 for a period in excess of 28 days (the temporary permitted use period under the Town and Country Planning (General Permitted Development) Order 1995). However, he found that the presence of the mobile facilities did not equate to the use of the Land, and that their presence ‘could easily have been seen as the temporary storage of the facilities’. Moreover, he found in any case that ‘the mere presence of the mobile facilities on the Land, without evidence of actual use, would not have enabled the Council to enforce against a material change of use of the Land from its lawful agricultural use’ as their impact on the character of the Land would have been de minimis. He accordingly proceeded to assess submissions relating to use, ultimately concluding that there was not sufficient evidence to show that, on the balance of probability, the Land was used for tent camping for a period in excess of 28 days during that year.

It was this approach that was challenged by Mrs Hedges. Relying on passages from the judgment of Lord Mance in Secretary of State for Communities and Local Government v Welwyn Hatfield Borough Council [2011] UKSC 15, she submitted that the Inspector placed too much stress on the need for actual use and failed to look at the matter in the round, as Welwyn required him to do. Moreover, case law demonstrated that useability could be taken into account. As everything was in place for tent camping in July 2009, the material change of use occurred at that time.

HH Judge Jarman QC held that the Inspector did have regard to factors other than actual use and was entitled to come to the conclusion that he had. The Inspector did not overly focus on use on a day to day basis – and to the extent to which he had, on the facts of this case he was entitled to do so. Lord Mance’s warning about too great a focus on ‘actual use’ in dwelling cases was not as apposite where the use in question is camping or caravanning. Moreover, the context of Lord Mance’s comments in Welwyn was important. Lord Mance was criticising too keen a focus on previous active use in circumstances where a builder had just built a house and was about to move in. Such a context did not exist on the circumstances before the Court.

Accordingly, the appeal was dismissed

Full Case

Written by Stephanie Bruce-Smith, Town Legal.
Key contacts
Susannah Herbert
Associate, Town Legal LLP
London

e susannah.herbert@townlegal.com
d 0203 893 0395

Nikita Sellers 
Associate, Town Legal LLP
London

e nikita.sellers@townlegal.com
d 020 3893 0412

Stephanie Bruce-Smith
Paralegal, Town Legal LLP
London

e stephanie.bruce-smith@townlegal.com
d 074001 81383

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